IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSITUTION OF IRELAND
PATRICK JOSEPH MCDONAGH
THE GOVERNOR OF MOUNTJOY PRISON (No.2)
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 17th day of February 2016
1. Where during the currency of an application for release under Article 40.4.2 of the Constitution the detainer accepts that the original basis for the detention is no longer valid, in what circumstances (if any) may he or she apply to the High Court to receive fresh evidence by way of order or warrant in order to justify the legality of the detention? That is essentially the question presented on this appeal from the decision of the High Court (Haughton J.) dated 14th November 2014 directing the release of the applicant.
2. Although it must be accepted that by reason of supervening events the appeal to this Court had become moot, this Court has already decided that this appeal should nonetheless proceed, if only by way of exception to the mootness doctrine: see McDonagh v. Governor of Mountjoy Prison  IECA 71.
The background to the application
3. In order to understand the manner in which the legal issues presented by this application properly arise, it is first necessary to set out the factual background. The applicant in these Article 40 proceedings, Mr. McDonagh, was convicted in his absence in the District Court on 18th December 2013 of the offence of using marked motor fuel in his motor car, contrary to s. 102 of the Finance Act 1999 (as amended). While it appears that the District Court decided to impose a fine of €3,000 and, in default of payment, a sentence of 90 days’ imprisonment, it is also agreed that the warrant which actually issued from that Court did not accurately reflect these details.
4. According to the affidavits filed in these proceedings, it is stated that Mr. McDonagh had arrived late for the District Court, but he was informed by court officials that he had been fined €3,000. At all events, the fine which was recorded in the Courts Service system was one of €300 rather than €3,000. A fines notes was later issued to Mr. McDonagh which recorded the sum which was payable as €300.
5. Mr. McDonagh does not appear to have made any attempt to appeal the fine or to seek an extension in which to pay it. A committal warrant subsequently issued in June 2014. The applicant was originally imprisoned on foot of this warrant on 11th October 2014 following his failure to pay the fine, but was released on temporary release. It seems that he did not comply with the conditions attaching to that temporary release and he was re-committed to prison on 31st October 2014. Following his re-committal to prison his solicitor made an application on 10th November 2014 for an inquiry under Article 40.4.2 of the Constitution into the legality of the applicant’s detention on the ground that the committal warrant recorded the wrong penalty and was therefore legally infirm. Kearns P. directed an inquiry and ordered that the matter would be returnable to him at 2 pm that afternoon.
6. At 2pm the matter was then assigned to Haughton J. Following discussions regarding the complaints made in the grounding affidavit, it was agreed that the applicant should be admitted to bail pending further inquiries. Haughton J. also made an order authorising the release of the Digital Audio Recording (“DAR”) of what had happened in the District Court. The requisite certificate of the grounds of detention was then filed on behalf of the Governor, but counsel stated that this was expressed to be without prejudice to any subsequent amendments which might be in contemplation once the full facts had been established.
7. The certificate itself exhibited the committal warrant of 5th June 2014. This warrant itself referred to the fine as being a €300 fine rather than a €3,000 fine. Haughton J. himself stated that he had listened to the DAR and was satisfied that the fine which had in fact been imposed was a fine of €3,000. A further affidavit was filed by a member of the Courts Service explaining that the error was the result of a simple administrative lapse.
8. A further affidavit was also sworn by a Ms. Mary Kiely explaining the circumstances in which the original warrant then came to be amended by the District Court. It would seem that an application was then made on behalf of the Revenue Solicitor (i.e., the effective prosecuting authority for this Revenue offence) to District Judge Halpin to exercise the slip rule jurisdiction in order to amend the warrant. The solicitor for the applicant appears to have taken the view that an application of this kind during the currency of the Article 40 proceedings was irregular and that, in any event, neither he nor counsel could be present to meet such an application at such short notice. At all events, the order was duly amended by District Judge Halpin. It is upon this amended order that the Governor now seeks to rely in order to justify the validity of the detention.
9. It is, however, accepted that no application to amend the certificate was made on behalf of the Governor during the currency of the hearing in the High Court. The Governor submits that this course was both unnecessary and, in some respects, even inappropriate given that the applicant was by this stage on bail.
10. By order of the High Court dated 14th November 2014 (Haughton J.) the applicant was released on the ground that the detention warrant which had been sent to the applicant carried the wrong penalty (€300 instead of €3,000). Haughton J. considered that given that the default option of prison was in juxtaposition with the monetary penalty, the inaccurate nature of the warrant was accordingly fundamental. Haughton J. accordingly directed the release of the applicant. The respondent Governor has now appealed to this Court against that decision.
The Article 40.4.2 jurisdiction and documentary error
11. There have been a series of recent authorities dealing with the nature of documentary error. The issue in these cases is principally concerned with whether the defects in question were either harmless or de minimis on the one hand or were so fundamental that they destroyed the validity of the document on the other.
12. In these cases the courts have, in effect, been called upon to decide on which the side of the line the documentary error at issue falls. On the one hand there are cases such as MC v. Director of Oberstown IEHC 222 where McDermott J. considered that a reference to the wrong sub-section in a committal warrant of a young offender was essentially de minimis. In other cases, however, the defects in the warrants or other orders forming the basis of the applicant’s detention have been found to be more grievous and to have destroyed the validity of the documents offered to justify the detention. Examples here include Carroll v. Governor of Mountjoy Prison  3 I.R. 392, GE v. Governor of Cloverhill Prison  IESC 41; Joyce v. Governor of the Dóchas Centre  2 I.R. 678; Miller v. Governor of the Midlands Prison IEHC 176 and Moore v. Governor of Wheatfield Prison IEHC 147.
13. As it happens, however, this Court is not required to review these authorities, since the Governor freely concedes that the original warrant was defective and could not properly support the detention of the applicant. In view of that concession, the present appeal then fundamentally concerns an evidential issue: in what, if any, circumstances can the detainer seek to go behind the (admittedly defective) warrant by introducing a fresh warrant and thus seek to justify the detention? Before examining that question, it is necessary first to rehearse some of the essential features of the Article 40.4.2 procedure.
The two stage procedure prescribed by Article 40.4.2
14. The procedure envisaged by Article 40.4.2 is quite clear. The applicant may first apply to “any and every judge” of the High Court that he or she is being unlawfully detained. If the judge of the High Court in question considers that an inquiry should be commenced, the Court shall “forthwith enquire into the said” complaint. The Court is further empowered to direct the production of “the body of such person” before it on a named day and to require the detainer to certify “in writing the grounds of his detention.” The Court must then give the detainer “an opportunity of justifying the detention”. If, having heard the detainer, the Court is not satisfied that the applicant is “being detained in accordance with the law”, it must order the release of the applicant.
15. It must also be recalled that the Supreme Court has held that the power contained in Article 40.4.2 to certify the grounds for the detention is not simply enabling, but is in truth a mandatory power: see The State (Rogers) v. Galvin  I.R. 249. As Henchy J. said in that case ( I.R. 249, 253):
“This opportunity of justifying the detention is always treated as including an opportunity of justifying the detention by means of a certificate in writing. It cannot be treated as a mere enabling or dispensable preliminary. It is mandatory. It lies at the heart of the jurisdiction to grant a release by way of habeas corpus. It is a constitutional recognition of the rule of natural justice expressed in the maxim audi alteram partem. It guards against the risk that on an ex parte application, or on an application in which the detainer has not had a proper opportunity of countering the detainee’s complaint, an unjustified order of release from custody may be made. It gives constitutional form and shape to what had been for centuries an essential prelude to release by means of the writ of habeas corpus.”
16. It is therefore implicit in the scheme of things implied by Article 40.4.2 that the opportunity to justify the detention must be by reference to the certificate filed by the detainer. What, then, is the position where the detainer accepts that the original certificate as filed no longer affords the grounds by which the validity of the detention can be justified?
Applications to amend the Article 40.4.2 certificate
17. It is, perhaps, rather surprising that this question has not hitherto been directly addressed by the authorities dealing with the scope of Article 40.4.2 and documentary error. There are, however, a series of recent High Court decisions in which this issue has been squarely in view. In both Joyce and Miller applications to include new documentation which might have corrected the record simply came too late for any proper consideration, as in both cases the Court was on the point of giving judgment and the Article 40 application had in truth ended. In Carroll there is a hint by Peart J. that he might have been prepared to receive such documentation in order that the record might be corrected. In O’Farrell v. Governor of Portlaoise Prison (No.1) IEHC 416 sitting as a judge of the High Court, I expressly adjourned an application for release under Article 40.4.2 to enable the Minister for Justice to apply to the High Court to have a defective warrant issued under the Transfer of Sentenced Persons Act 1995 duly corrected.
18. In Moore v. Governor of Wheatfield Prison IEHC 147 Kearns P. expressly approved of such an approach, stating:
“Ideally, hearings of inquiries under Article 40 should permit rectification of the record during the course of that inquiry, such as, for example, by permitting the filing during the hearing of a long form warrant with all appropriate information…This Court would venture to suggest that the status of Article 40 is enhanced by such an approach.”
19. All of these authorities have, however, stressed the importance of a clear and accurate record in matter of detention. It is important that such documentation possess “the integrity worthy of a document whose effect is to authorise the deprivation of a person’s liberty”: see JOG v. Governor of Cork Prison 2 IR 203, 213, per Peart J. All of this underscores the importance of the certificate filed by the detainer, since it is that certificate (and the documentation appended thereto) which the Constitution ordains is the basis upon which the detainer must justify the detention and upon which the High Court must then determine the legality of the detention. The Supreme Court has already said as much in Rogers.
20. Approaching the matter from first principle, therefore, it is clear that where (as in the present case) the detainer no longer wishes to rely on the original certificate (or the documentation attached thereto) he or she must first seek leave from the High Court to apply to amend or replace the existing Article 40.4.2 certificate of detention. As the decision in Rogers makes clear, it is, after all, that certificate which forms the basis of the detainer’s argument in justification of the validity of the detention. If the detainer is no longer willing to stand over the original Article 40.4.2 certificate, it follows that he or she must make an application for leave to amend or replace the certificate.
21. There is no reason in principle why, during the currency of the Article 40.4.2 proceedings, such leave should not be granted, save where this would be obviously prejudicial or unfair or where the application to amend is simply made too late. Something like that happened in both Joyce and Miller where the High Court judges in question were informed of the existence of fresh, corrected warrants just as the judges in those cases were about to deliver judgment. Again, it is clear from the comments of Kearns P. in Moore, that the application to amend must come during the currency of the Article 40.4.2 hearing.
22. It is true that in the present case there was no formal application is made to amend or replace the Article 40.4.2 certificate because it was considered that this was unnecessary - and perhaps even inappropriate - as the applicant was then on bail. For my part, I do not think that this was really a relevant factor. The application for release under Article 40.4.2 was still pending before the High Court and if the detainer wanted to adduce new evidence, it was necessary to apply to have the certificate amended.
23. Nevertheless, it was implicit in the stand taken by the Governor that he wished to have additional evidence adduced in order that the record might be corrected. Here it might also be noted that the Governor had, it seems, reserved the right to apply to have the certificate amended, although in the end this did not formally happen for the reasons just stated.
24. In these circumstances and given, perhaps, that the most appropriate course of action in relation to this issue had not been hitherto fully clarified by the earlier authorities, I consider that the most appropriate step to formally allow the appeal by the Governor and to remit the matter to Haughton J. in the High Court. At that point, it will be open to the Governor to apply to have the certificate amended so as to include the new, corrected warrant. It will be a matter for Haughton J. to decide in the light of the principles set out in this judgment whether he should (or should not) take this step.
25. In the event that no successful application is made in that regard, then the order for release must stand because it is accepted that the existing certified record is inadequate to support the validity of the detention. If, on the other hand, Haughton J. were to accede to any such application, then that would not necessarily dispose of the matter, since the issue as to whether the District Court had jurisdiction to amend the original order in the circumstances described, inter alia, in Ms. Kiely’s affidavit would then fall to be considered and determined. Since that issue was not strictly before this Court, I express no view at all on that issue.
26. For the avoidance of any doubt, it should be made clear that the applicant would also be free to advance the argument before the High Court that his 90 day sentence had already expired by effluxion of time and that the running of this time was not arrested by his release on bail during the Article 40 proceedings. This was the argument which the applicant had advanced before this Court to justify his contention that the appeal was moot. In the end, however, it did not prove necessary for this Court to rule on that question in our first judgment and I express no view on that issue either.
27. It follows, therefore, that for the reasons stated, I would allow the appeal and remit this Article 40 application to Haughton J. to determine in the manner in which I have just indicated.